White House Buries Itself in Analysis of Non-Economically Significant Rules: A Tour of OIRA's Regulatory Dashboard

by Robert Verchick

October 07, 2013

Ever wonder how Professor Tom McGarity knows about all those delays in regulatory review? Or how Professor Lisa Heinzerling learns about food safety regulations that the White House appears to be burying?

Well, now you too can be an OIRA ninja. In President Obama’s first term, the White House introduced an interactive Web portal stocked with charts and figures to give you better information about the President’s centralized system of regulatory review. (Last summer I referred to OIRA as “the ganglia of the president’s rulemaking brain,” which creeped out some readers, but I’m sticking with it.)
 

There are only two rules for you. First, don’t be afraid to snoop around; sometimes the most useful stuff is found three or four levels down. Second, don’t fall in love; OIRA’s slick Web site is a fresh breeze for advocates of government transparency. But there’s still a lot missing. Remember the line about statistics and swimsuits: what they reveal is interesting, but what they conceal is vital.
 

Let’s start with the homepage of the White House Office of Information and Regulatory Affairs, the one with the photo of President Obama and former regulatory czar Cass Sunstein gazing admiringly into each other’s eyes. Just below the photo is a link to the “Regulatory Dashboard,” your entrée into the President’s regulatory control room.
 

 

Click the link and you’ll find yourself in a candy shop of circle graphs and column charts--just like Wolf Blitzer on CNN.

 

 

This is where you can find out about what rules are currently under consideration at OIRA and how long they have been there. By adjusting the filters below the charts, you can format the data to your particular interests. Last week I wanted to see a breakdown of rules under review by the top ten agencies. After a click or two, I got this. (The red circles are mine.)

 

As you can see, on the day I accessed this screen (10/03/2013), OIRA had 118 rules under review. Eighteen of those were environmental rules, ranking EPA (for the moment) as OIRA’s second most scrutinized agency. As it turns out, that’s pretty typical. Normally, this information is very current, but this week things are going very slowly for reasons you can probably figure out.

 

All that White House scrutinizing takes time. And as my CPR colleagues often point out, OIRA is frequently--in today’s administration unprecedentedly--in violation of the 90-day deadline for processing agency submissions. Nobody will say exactly why delays have become such a problem (remember the swimsuits). OIRA’s economic analysis does take time, as does the process of interagency review. But many observers believe politics is a big factor. Some of these rules, after all, are political dynamite (coal ash? toxic chemicals?) and difficult to handle safely in a public forum. You might wonder why delay is such a big deal. But health and environmental regulations can prevent illness, death, and ecosystem collapse. Every month that those regulations stay in the box is another month when more bad things can happen.

 

 

And as you can see (after a few more clicks on the Dashboard), some agencies are delayed a lot more than others, like Health and Human Services, the Department of Transportation, and EPA--three agencies that emphasize health and safety.

 

 

Why does OIRA review so many agency rules anyway? The common assumption is that agency rules are often very “expensive,” by which Beltway Insiders mean the rules, while promising sometimes vast public benefits, are nonetheless costly for industry to comply with. Indeed, Executive Order 12866 requires agencies to submit for review any rule that is “economically significant,” which is defined as having “an annual effect on the economy of $100 million.” So how many of those 118 rules stacked up at OIRA are “economically significant”? The Dashboard has the answer:

 

 

 

You read that right: only 18 of 118 (or about 15%) are rules deemed by OIRA to be “economically significant.” The rest fit into other categories, including a catch-all category for rules that OIRA may take an interest in that (to quote E.O. 12866), "[r]aise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in this Executive order." Read that again: “[r]aise novel . . . policy issues arising out of . . . the President’s priorities.” This is the language that leads some observers to speculate that many rules under review are there because they pack political dynamite. Look, for instance, at the number of “non-economically significant” environmental rules under review as compared to the number of “significant” ones. That looks like a lot of regulatory novelty.  Rules that protect public health and safety should not be held up by political delay. Probing so many non-economically signifigant rules wastes taxpayer money. Plus citizens are cheated of the benefits that could immediately improve their health, safety and well-being.

After scrolling down and doing a little fishing, you can pull up examples of the kind of “non-significant” rules OIRA is preoccupied with, like this on nanoscale materials. Ever wonder about the health effects of nano-particles in your sunscreen or paint products? Ever think it might be a good idea for the government to collect data on stuff like this from the people who make and sell it? According to the White House’s Web site, EPA sent over a proposed rule to address this issue nearly three years ago, a rule with no economic “significance.” But it’s still under review at OIRA. Why is that? The Web site, unfortunately, doesn’t say. (Swimsuits, again.)

 

 

If you had information like this (and now you do), what might you do with it? One obvious answer is to inform other people so that the goal of government transparency is made more real. But you could also take your case to the White House. If you are a member of a company or citizens’ group, you could even set up a meeting to discuss your views in person at a meeting with OIRA staff members. In the past, OIRA has expressed its willingness to meet with virtually any company or group that has a serious case to make. If you are not “a usual suspect” they might even take more of an interest in meeting you. (OIRA staffers get bored too.) 

That’s honorable. But unfortunately, only those who know about OIRA and who have the resources to travel, end up setting up the meetings. Want to know who goes to these meetings? Again, the information is available on the Web site. Go back to the photo of our smiling leaders, examine the subheadings under “Regulatory Matters.”

 

 

Soon you will find gateways into the meeting records that OIRA keeps on rules advanced by all agencies.

Look at this list, involving air regulations:

 

As you can see there is a lot of interest in EPA’s recently announced proposal to regulate greenhouse gases from new gas- and coal-fired electric plants. The Sierra Club made a showing in one of those meetings, but most were held for the usual industry-based suspects.

But it could be different. If more people outside of industry knew about what OIRA does, how its data is made available, and how it’s staff can be contacted and communicated with, White House review might look less like a meeting at the Wharton Club, and more like democracy. Not only can you begin the discussion on the White House portal, you can even send gifts! (But perhaps in a separate mailing.)

 

 

 

So crack open your laptop and get going. White House staffers are standing by--or will be when the government re-opens.

 

 

 

Tagged as: OIRA
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Robert R.M. Verchick holds the Gauthier ~ St. Martin Eminent Scholar Chair in Environmental Law at Loyola University, New Orleans, is the Faculty Director of the Center for Environmental Law at Loyola, and is a Senior Fellow in Disaster Resilience Leadership, Tulane University. He is the President of the Center for Progressive Reform.

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